Analysis: GOP Assault on the Filibuster Likely to Backfire

WASHINGTON—If Senate Republican leaders clamp down on filibusters against judicial nominees, it would change the balance of power in the Senate, erode the rights of the minority party and backfire against them in the long term.

The Senate is "not always going to be Republican," former Senate Majority Leader Bob Dole, the 1992 GOP presidential candidate, is reminding fellow Republicans. "Think down the road," he advises.

Dole is one of several former Senate majority leaders who have counseled a go-slow approach on the brink of a parliamentary war over Democratic filibusters—delaying tactics—against President Bush's ultra-conservative judicial nominees.

The current majority leader, Sen. Bill Frist, R-Tenn., and some other leading Republicans claim that the Constitution's "advice and consent" clause is under assault. Requiring any threshold greater than a majority vote in the 100-member Senate for confirmation is unconstitutional, they contend.

Constitutional scholars scoff at these arguments, however.

Barring filibusters for judicial nominations "would be a serious blow to minority rights in the Senate. There has always been some form of extended debate, although from 1917 on there have been ways of closing it off," said Allan J. Lichtman, a political historian at American University.

Another law professor who asked to remain anonymous said: “It’s curious; Republicans loved the filibuster when they used it half a century ago to protect southern rednecks from civil rights legislation.”

It now takes 60 votes to shut down a filibuster. That is fine for legislation, but inappropriate for judicial nominations, Frist and his colleagues argue.

Frist soon may seek to declare that a judicial nominee needs only a 51-vote majority and cannot be subject to the 60-vote margin needed to stop a filibuster.

Some are calling this approach the "nuclear option," one sure to cause Democrats to retaliate and sour any semblance of a working relationship between the parties.

Hoping to bolster his conservative credentials for his 2008 presidential bid, Frist is under pressure to force a Senate showdown in the coming weeks. But not every Senate Republican is with him on the issue.

"Someday there will be a liberal Democrat president and a liberal Democrat Congress," Sen. John McCain, R-Ariz., told MSNBC last week. "Do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if Democrats are in the majority?"

Frist's plan to tape a message with Christian conservatives who portray Democrats as "against people of faith" for blocking Bush's nominees represents a new low in Republican hardball tactics.

Democrats feel the need to respond in kind with maneuvers that could tie the Senate in knots. The Democrats' leader, Sen. Harry Reid of Nevada, said a campaign by radical Republicans would overturn a 200-year tradition in the Senate.

It has been a long time since filibusters were conducted by senators who spoke hour after hour in the full Senate. One masterful practitioner was the late Sen. Strom Thurmond, R-S.C. Now, for the most part, filibusters are merely threatened. Still, that usually is enough to trigger the filing of a motion, which requires 60 votes, to sharply limit debate. In practical, terms, little can get through the Senate without at least 60 votes.

The White House insists publicly that it is keeping its distance from how the Senate conducts its business.

But Bush told newspaper editors last week: "I think my judges ought to get an up or down vote, period." And Vice President Dick Cheney, in his role as president of the Senate, has committed to break the tie in favor of ending judicial filibusters should a 50-50 vote occur.